Cox v Fellows [2013] NSWCA 206

Cox v Fellows [2013] NSWCA 206

The appeal failed because the trial judge's findings on causation and breach were open on the evidence. The alternative causes relied on by the appellant were either abandoned, unsupported, speculative, or properly rejected. The respondent's stricture was found to have been caused by diathermy current applied at or near the surgical clips, and that use of diathermy was in a location the appellant's own technique and training required him to avoid. The occurrence was avoidable by reasonable care and skill and was therefore a breach of duty, not a materialisation of an inherent risk.

Jurisdiction
Australia
Judgment Date
09 July 2013
Procedural Posture
Appeal in Negligence Proceedings Concerning Liability for Medical Negligence / Appeal From Decision of Mc Loughlin Dcj; Liability Only, Quantum Agreed at Trial
Outcome
Appeal dismissed with costs.
Legal Topics
['breach of Duty by Medical Practitioner' 'causation Under S 5 D Civil Liability Act 2002' 'inherent Risk Under S 5 I Civil Liability Act 2002' 'laparoscopic Cholecystectomy' 'diathermy Injury' 'bile Duct Stricture']
['torts' 'negligence' 'medical Negligence'] ['breach of Duty by Medical Practitioner' 'causation Under S 5 D Civil Liability Act 2002' 'inherent Risk Under S 5 I Civil Liability Act 2002' 'laparoscopic Cholecystectomy' 'diathermy Injury' 'bile Duct Stricture']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal in Negligence Proceedings Concerning Liability for Medical Negligence / Appeal From Decision of Mc Loughlin Dcj; Liability Only, Quantum Agreed at Trial

Legal Issues

  1. 1 ["Whether the respondent's lower common hepatic duct stricture was caused operatively by deployment of diathermy current at or near surgical clips during laparoscopic cholecystectomy." 'Whether use of diathermy at or near the surgical clips involved a departure from the standard of care required of the appellant surgeon.' "Whether the respondent's injury was the materialisation of an inherent risk under s 5I of the Civil Liability Act 2002." 'Whether the trial judge erred in rejecting alternative causes including pre-existing PSC, idiopathic stricture, current through the hepatic artery, a diathermy burn directly to the duct, or some other unknown procedural cause.']

Ratio Decidendi

The appeal failed because the trial judge's findings on causation and breach were open on the evidence. The alternative causes relied on by the appellant were either abandoned, unsupported, speculative, or properly rejected. The respondent's stricture was found to have been caused by diathermy current applied at or near the surgical clips, and that use of diathermy was in a location the appellant's own technique and training required him to avoid. The occurrence was avoidable by reasonable care and skill and was therefore a breach of duty, not a materialisation of an inherent risk.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal be dismissed.' "Appellant to pay the respondent's costs."]